[1998] KEHC 215 (KLR)
The court held that the application for injunction should be determined on the balance of convenience rather than on whether a prima facie case with a probability of success has been established. Since the plaintiffs only sought to preserve the land and not to dispossess the registered proprietor, and because...
Source-derived case information.
- Citation
- [1998] KEHC 215 (KLR)
- Parties
- Plaintiff: Beatrice Wanja Mburu; Defendant: Samuel Mburu Kimani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2750 of 1996
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application for injunction allowed.
- Judges
- AM Githinji
- Legal Topics
- Interlocutory Injunctions, Land Title Disputes, Preservation of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Wanja Mburu
Plaintiff
Samuel Mburu Kimani
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether an injunction should issue to preserve land title No. L.R Gatanga/Kirwara/687 pending determination of the suit.
- 2 Whether the balance of convenience favours granting the injunction.
Ratio Decidendi
The court held that the application for injunction should be determined on the balance of convenience rather than on whether a prima facie case with a probability of success has been established. Since the plaintiffs only sought to preserve the land and not to dispossess the registered proprietor, and because failure to preserve the land could render the suit nugatory if the land were sold or charged, the balance of convenience favoured granting the injunction. The court found it just to preserve the land until the suit's determination, applying the principle of lis pendens to prevent prejudice to the subject matter of the litigation.
Court Disposition
Application for injunction allowed.
Orders
- An injunction is granted restraining the second defendant from selling, transferring, disposing of, damaging, wasting, or dealing with land title No. L.R Gatanga/Kirwara/687 until the determination of the suit.
- Costs in the cause.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 2750 OF 1996
BEATRICE WANJA MBURU & 4 OTHERS......... PLAINTIFF VERSUS SAMUEL MBURU KIMANI.................................. DEFENDANT
RULING
This is the plaintiffs application for an order of injunction to restrain the 2nd defendant from selling transferring disposing of damaging, wasting dealing with land title No. L.R Gatanga/Kirwara/687 until the hearing of the suit.
The applicant widow of Samuel Mburu (first defendant) now deceased. The other plaintiffs are children of the first plaintiff and first defendant. She first sold the land in dispute to the 2nd defendant. The second defendant is registered as proprietor and is in possession.
Plaintiff’s suit seeks to recover the land from the second defendant. I have considered the supporting affidavit, replying affidavit and the counsels submissions. This application should not in my view be decided on the basis of whether or not the plaintiff have shown a prima facie case with a probability of success. All the applicants are asking is that the land in dispute be preserved until the determination of the suit. They are not asking that the second defendant be dispossessed or be restrained using the land.
Rather the application should be decided on the balance of convenience. The plaintiffs believe that they have a strong case against the 2nd defendant. If the land is not preserved and is sold or charged pending the determination of the suit the suit will be prejudiced and nugatory. The principle of us penance applies.
It is just that the land be preserved until the determination of the suit.
Consequently I allow the application and grant orders in terms of para 1 of the amended application until the determination of the suit.
Costs in the cause
E. M. Githinji
Judge
3. 7.98
Mr. Muturi present
Mr. Ngala present